Lynn and Repatriation Commission (Veterans' entitlements) - [2020] AATA 1331

Lynn and Repatriation Commission (Veterans' entitlements) [2020] AATA 1331 (13 May 2020)
Division:VETERANS' APPEALS DIVISION
File Number: 2016/2370
Re:Edith Lynn
APPLICANT

AndRepatriation Commission
RESPONDENT

DECISION
Tribunal:Deputy President Dr P McDermott RFD

Date:13 May 2020
Place:Brisbane

I affirm the decision under review.
........................................................................
Deputy President Dr P McDermott RFD
CATCHWORDS
VETERANS’ AFFAIRS – veteran deceased – claim for compensation by widow – whether veteran rendered British nuclear test defence service – Statement of Principles concerning malignant neoplasm of the colorectum (Instrument No. 37 of 2013 as amended by Instrument No. 58 of 2017) – whether reasonable hypothesis that veteran’s condition related to service – Deledio test – decision under review affirmed
LEGISLATION
Statement of Principles concerning malignant neoplasm of the colorectum No. 37 of 2013 (Cth)
Veterans’ Entitlements Act 1986 (Cth)
Veterans’ Entitlements (Statements of Principles—Cumulative Equivalent Dose) Amendment Determination 2017 (No. 58 of 2017) (Cth)
CASES
Forrester v Repatriation Commission [2013] FCA 898
Gorton v Repatriation Commission (2001) 110 FCR. 321; [2001] FCA 1194
Mahoney and Repatriation Commission [2015] AATA 379
Marine Power Australia Pty Ltd v Comptroller-General of Customs (1989) 89 ALR 562
Mills and Repatriation Commission [2011] AATA 336
Repatriation Commission v Deledio (1998) 83 FCR 82; [1998] FCA 391
Woodward v Repatriation Commission (2003) 131 FCR 473; [2003] FCAFC 160
REASONS FOR DECISION
Deputy President Dr P McDermott RFD
13 May 2020
BACKGROUND

On 17 July 2013 Mrs. Edith Lynn (‘the applicant’) made a claim for widow’s pension on the basis that the death of her late husband, the late Mr. Robert Lynn (‘the veteran’), was related to British nuclear test defence service under ss 68(1) and ss 69B(2) of the Veterans’ Entitlements Act 1986 (Cth) (‘the Act’). The veteran was not in receipt of a pension under the Act prior to his death.
On 30 July 2013 the Repatriation Commission (‘the respondent’) determined that the death of the veteran was not service related.
On 11 February 2016 the Veterans’ Review Board (‘VRB’) affirmed the decision of the respondent.
On 4 May 2016 the applicant made an application to this Tribunal to review the respondent’s decision.
LEGISLATIVE FRAMEWORK
Section 70(1)(a) of the Act provides that where the death of a member of the Forces was defence-caused, the Commonwealth is, subject to the Act, liable to pay a pension by way of compensation to the dependants of the member. The Act provides that “defence service” includes “British nuclear test defence service” (ss 68(1)). Under ss 69B(2) of the Act a person has rendered British nuclear test defence service while the person was a member of the Defence Force and rendered service in an area described in the table in that provision during a period described in the table for the relevant area. The relevant area in the table is the area “within 40 kilometres of any of the Buffalo or Antler test sites near Maralinga

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Lynn and Repatriation Commission (Veterans' entitlements) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2020] AATA 1331
Decision Date: 13 May 2020

CaseChat Overview and Summary

This matter concerned an appeal by a widow against a decision of the Repatriation Commission regarding a claim for compensation for her deceased veteran husband. The core of the dispute revolved around whether the veteran had rendered British nuclear test defence service, specifically in relation to a Statement of Principles concerning malignant neoplasm of the colorectum. The appeal was heard by Deputy President McDermott.

The legal issues before the court were whether the veteran's condition was related to his service, and whether there was a reasonable hypothesis that his malignant neoplasm of the colorectum was caused by such service, applying the principles established in *Deledio*. A key factual determination required was whether the veteran was within the prescribed test site areas at Maralinga during the relevant periods, as defined by section 69B(2) of the relevant Act.

The Deputy President considered the evidence, including the applicant's testimony and expert reports. The applicant stated her husband rarely discussed his work and never explicitly mentioned being stationed at Maralinga or turning his back to a blast, although she recalled a conversation with a neighbour where he may have alluded to his absences. The Deputy President found that the veteran's service records, which were considered comprehensive and detailed even short postings, did not contain any reference to service in the Maralinga locality. Furthermore, evidence regarding RAAF involvement in cloud sampling and decontamination at Maralinga did not identify the veteran as being among those who received significant radiation exposure or were involved in such duties. Consequently, the Deputy President was not reasonably satisfied that the veteran was present in the prescribed areas during the specified times.

The Deputy President affirmed the decision under review, acknowledging the veteran's service but concluding that the evidence did not establish the necessary link between his service and his condition to grant the application under the relevant legislative scheme.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

A Statement of Principle (‘SoP’) is binding on the respondent and this Tribunal.EVIDENCE OF APPLICANT AND LAY WITNESSES I will outline the evidence given by the applicant as well as the witnesses that were identified by the applicant as the lay witnesses.ApplicantEvidence-in-chief The applicant confirmed that the contents of her statement[1] were true and correct. She confirmed what she said in her statement that her late husband, the veteran, never talked much about his work. The applicant was asked how she came to understand that the veteran did not wish to speak about his work; she answered: “Well, he would just say that he had to go somewhere at the weekend, or through the week and he didn’t necessarily say where he was going, he would just say he was going” and that “he never told us more than that”. The applicant was taken to paragraph 13 concerning a conversation with her neighbour, Mrs. B.G., in which her neighbour told her certain things. She confirmed that she had a recollection of having that conversation.[1] Exhibit B.Cross-examination In cross-examination, the applicant confirmed that the veteran never discussed his work at Maralinga with her. The applicant also confirmed that the veteran had never told her that he was stationed at Maralinga and that he had turned his back to a blast. She remarked: “He never told me, but he had told [Mrs. B. G.]”. The applicant confirmed paragraph 14 of her statement where she explained why the veteran never told her about Maralinga but nonetheless spoke to her neighbour about this. It was put to the applicant that she cannot really explain why the veteran would have spoken to her neighbour about this; she answered: “No, I can’t. I don’t think he gave a lot of detail, but he would have given enough that – because, she knew he was going away all the time. He was not home, hardly at all”. It was put to the applicant that she spent a reasonable amount of time speaking to her neighbour on a daily basis, or every few days; she answered: “Well, not on a daily basis, but we were good neighbours and we would have a cup of tea with each other and she had a husband, I was just a mother of these children and I never went out a lot and I didn’t drive in those days, or anything”. It was put to the applicant that it is reasonable to assume that if the veteran told her something, it was possible that it would come back to her; she answered: “Well, I doubt – I don’t know why he told her. I have no idea”. The applicant was directed to paragraph 13 of her statement where she stated that she recalled the conversation with Mrs. B.G. and that in the third line of the paragraph it is stated that the conversation was in 1957. The applicant was asked whether Mrs. B.G. said to her that the conversation was in 1957; she answered: “Of that I can’t even remember now”. The applicant was asked if she recalled Mrs. B.G. telling her the date or is this simply something that she had inferred later on; she answered “Well, I probably – I don’t, at this moment remember it, because – but, I probably did, when I wrote this, 18 months ago”.

Decision

Reasons for decision

I acknowledge the service of the veteran who served his country well, his extensive service is reflected in his promotion record. However, under the scheme of the Act, I am unfortunately unable to grant this application.DECISION I affirm the decision under review.

Ratio Decidendi

Legal Principle Established

Dr Tinker was asked to clarify whether it is his view that Dr Douglas' methodology, as indicated in his report and as reflected in the minority report of the SERRI committee, lacks any kind of validating scientific evidence; he answered: “Yes, it's my opinion that Dr Douglas' methodology, and as reflected in the minority report, lacks any scientific support to suggest that the ICRP methodology underestimates radiation risk”.CONSIDERATIONWhether the veteran was within the prescribed test site areas at the relevant times The applicant, in her Statement of Facts and Contentions, has acknowledged that the only RAAF involvement in cloud sampling during Operation Buffalo (the first series of atomic tests at Maralinga) was limited to an Australian crew flying an RAF Canberra, which was decontaminated at RAAF Edinburgh.[14] This submission is based upon the Dosimetry study.[15] The Dosimetry study[16] reported that the only members of the RAAF that served at Maralinga and who received a radiation exposure of greater than 50 mSv were some 19 members in total. These personnel were in a Canberra bomber and the veteran is not one of those who are listed. There is no indication from the service records of the veteran that he had ever been stationed at RAAF Edinburgh and therefore could not have been involved in the decontamination of the RAF Canberra. I also mention that those records do not refer to service at Woomera.[14] Applicant’s Statement of Facts and Contentions dated 4 December 2017, paras 15 and 16.[15] Exhibit J, Australian Participants in British Nuclear Tests in Australia, Dosimetry and Mortality and Cancer Incidence Study, May 2006, Volume 1: Dosimetry, page 51.[16] Exhibit J, Australian Participants in British Nuclear Tests in Australia, Dosimetry and Mortality and Cancer Incidence Study, May 2006, Volume 1: Dosimetry, Table 7.9.2. I should mention that at the outset there was a contention from the applicant that the veteran was involved in cleaning Lincoln bombers at Amberley. I cannot be reasonably satisfied that the applicant who was a senior NCO and had a radio specialty as well as having other security duties would be involved in cleaning the Lincoln bombers. There is evidence that the decontamination was undertaken by a hygiene inspector and three engine fitters from No. 3 Aircraft Depot. There may certainly have been other personnel involved, but it is not likely that the veteran himself would be involved in decontamination duties bearing in mind his rank and responsibilities. One of the matters that I have to determine is whether I can be reasonably satisfied that the veteran was, at the relevant times, within the areas prescribed by ss 69B(2) of the Act, namely, the area within 40 kilometres of any of the Buffalo or Antler test sites near Maralinga for the period starting at the start of 27 September 1956 and ending at the end of 30 April 1965. I have determined that I cannot be reasonably satisfied that the veteran was in the prescribed areas at those times. This is because the service records of the veteran, which I consider to be comprehensive, do not contain any reference to the veteran having served in the Maralinga locality (T20 and T31). The respondent has pointed out that the service records disclose when the veteran was given other duties even for one day.